[This post is part of a series analyzing Robert George’s widely-read article, “What is Marriage“, which appeared on pages 245-286 of the Harvard Journal of Law and Public Policy. You can view all posts in the series here.]

Robert George has some challenges for us “revisionists.” He says we can’t meet them, but you know what? He’s wrong.

What exactly is he saying?

George starts with typical clarity and grace.

Although the conjugal view is, despite its critics, not only inferable from certain widely accepted features of marriage and good for society, but also internally coherent, no version of the revisionists’ view accounts for some of their own beliefs about marriage: namely, that the state has an interest in regulating some relationships, but only if they are romantic—presumptively sexual—and only if they are monogamous.

This sentence is 66 words long. The verb (“accounts”) doesn’t appear until word 33. To get to the subject of the sentence (“no version”) you have to wade through four — four! — introductory phrases set off by commas. Is this trivial?

No.

Bad writing is a great mask for poor reasoning: If it’s this hard to read, it must be deep! Or: I don’t know what he’s saying but he sure sounds smart!Don’t fall for it. In reality, convoluted prose often means there’s less here than meets the eye.

Anyway, back to his argument.

Obviously, I disagree that George’s conjugal/procreative view is “not only inferable…but internally consistent.” As we’ve seen, it manages to be circular and self-contradictory at the same time — no mean feat.

The rest of the statement has problems, too. After all, no one is arguing that that state has an interest in “regulating” only romantic, monogamous relationships. The state sets down law for all sorts of relationships: parent and child, guardian and ward, business partners, buyer and seller, donor and recipient

This is so obvious, in fact, that I point it out mainly as another instance of George’s inadequate presentation of his case, something that’s allowed him to gloss over many of its flaws.

George is really challenging us “revisionists” to demonstrate that (1) the state has an interest in applying marital law to relationships as long as they are (2) romantic and (3) monogamous.

The purpose of government

In point (1), as far as I can tell, George is bringing up a common theme among procreationists: The state has an interest in continuing the generation of healthy, educated, and well-adjusted citizens. Therefore, the state has an interest in regulating the relationships of those adults who bear and rear each successive generation. But why does the state have any interest in regulating marriage if marriage is unconnected to children?

There is so much wrong here.

I’d like to start with the ugliness of the question itself — ugly, because it relies on the (understandably) unstated assumption that the state should only do those things which benefit the state.

That may be the guiding principle in a totalitarian country. In a free land, though, we have to remember this: The individual does not exist to serve the State.

For instance, freedom of speech is vital to good governance and is thus in the interests of the state — but that’s not the only reason we allow individuals the right to speak freely. The same is true of freedom of religion. And assembly. And a multitude of other rights guaranteed to citizens.

It’s un-American to imply the government should secure a citizen’s rights only if they are in the interests of the state. And it’s profoundly un-American to deny the citizens are endowed with:

certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

Worth repeating: to secure these rights, governments are instituted among men. It is not the duty of the citizen to justify his or her rights to the state.

This is actually a major parting of the ways between our opponents and us. Conservatives, almost by definition, insist the burden of proof is on those who advocate change. But in a free country, shouldn’t the burden be on those who would limit that freedom?

The “revisionist” case for civil marriage

So let’s reframe George’s first issue. Stop focusing on the interests of the state. Let’s just ask why our “revisionist” view does imply the government should enact marital law. Keep in mind that George isn’t asking here why same-sex marriage should be legal. No, he asking why marriage itself should be a legal concept under the revisionist view.

First, let’s remind ourselves of George’s definition of this view:

Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life.

Well, this is easy.

Adults who want to want to “commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life” will often want to raise children. It’s perhaps the most daunting and profound task the ordinary person will face, and as a great book says, “Two are better than one; because they have a good reward for their labour. For if they fall, the one will lift up his fellow: but woe to him that is alone when he falleth; for he hath not another to help him up.”

It’s clearly in the interest of children to have a stable environment and to have regulations around the parents’ commitment to each other and to the child. This is true whether you’re a revisionist or a procreationist, whether you’re same-sex parents or opposite-sex.

But take children out of the picture. Imagine two adults, Riley and Jordan. Riley is a highly-paid Vice President of Manufacturing, while Jordan builds a reputation as an artist (but doesn’t make much money). What happens if Riley dies?

Does Jordan get to keep their home, or must it be sold and their savings liquidated to pay estate taxes?

Will Jordan receive the social security payments that Riley paid into the system?

Where does Riley’s pension and 401(k) go?

If Riley is hospitalized before dying, who will get to visit, and who makes the difficult end-of-life decisions?

These are all legal questions and they require a legal solution. Many of our opponents repeat the pernicious myth that Riley and Jordan could handle this through wills and powers of attorney. Tell that to Ron Hanby and Mark Goldberg.

The nightmare of legal limbo

Ron Hanby, struggling with depression, took his own life on October 2, 2008. Mark Goldberg, his partner of 17 years, battled Rhode Island bureaucracy for weeks before the state would release Ron’s body to him. Ron had no living relatives. The couple, however, did have:

None of that mattered in Rhode Island. Mark spent every day of his immediate grief on the phone with state officials, trying to get his husband’s body out of the morgue. Finally, after four weeks, a state bureaucrat took a special interest and helped him get Ron’s body released.

I called the Police to our home where the death occurred and in two hours they performed their investigation, offered their condolences, removed Ron’s body and left our house. No one offered any information on what I was to do next. No phone number to contact the detective in charge, no information on where they were taking Ron’s body, no information on what I as his partner for so many years should do next.

Ron had no next of kin other than me. I shared our Wills, Living Wills, Power of Attorney and Marriage Certificate to the Police Department, Medical Examiner’s Office and the Department of Health, but no one was willing to see these documents. The State Law stated that a two week search for next of kin must be done. The Medical Examiner’s office waited a full week before placing an ad in the Providence Journal. After no one responded they waited another week to send paperwork to the Health and Human Services Department listing Ron as an unclaimed body. During this four week process, I was on the phone every day trying to convince someone, anyone, that I was the person claiming Ron’s body. The same response came back to me every time; “It’s State law, our hands are tied, there’s nothing we can do”.

I attempted to place an obituary in the Providence Journal and again, I was denied because we were not blood relatives, and the Journal had to comply with state rules. GLAD, the Gay and Lesbian Advocacy and Defenders could not help me because our bond was not recognized in the State of RI. After four weeks an employee in the Department of General Public Assistance of Human Services took pity upon me and my plight. She reviewed our documentation and was able to get all parties concerned to release Ron’s body to me.

When this came to light, the Rhode Island legislature tried to pass the most simple of legal recognitions for same-sex couples: a bill creating funeral rights for domestic partners. They passed it in a bipartisan show of humanity: 63-1 in the House, unanimously in the Senate. And the Republican governor vetoed it.

The National Organization for Marriage urged legislators to let the veto stand. (Robert George is the Founding Chairman of NOM.) Chris Plante, executive director of NOM-RI, wrote:

[T]he proposed legislation simply is not necessary… The right of any person, without regard to sexual preference or relationship to the decedent, to serve as a designated funeral-planning agent is already expressly guaranteed by Rhode Island Law 5-33.1-4. That statute only requires a simple notarized form naming an agent.

Ah, yes, Rhode Island Law 5-33.1-4. Of course. And what can we say in return except:

Thank you Mr. Plante!

Mark and Ron had wills, power of attorney, and an actual marriage license? Simpletons! They should have known to go to a notary and designate each other as funeral planning agents, pursuant to R.I. Law 5-33.1-4!

This is the Kafka-esque nightmare faced by couples who “commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life” in states that offer their relationships no legal recognition. Lord only knows how many other forms and requirements Hanby and Goldberg would have needed to get their legal rights. And that’s just in one state. Imagine the hell they would go through if they decided to travel cross-country, investigating procedures and filling out forms in every state they visited.

Of course, some problems can’t be solved even if you have every bit of paperwork intact. Shirley Tan learned this the hard way when immigration officials shackled her in front of her kids and spouse, and hauled her off for possible deportation.

“Regulating”?

These examples point out another big flaw in the way George framed the issue: But why does the state have any interest in regulating marriage if marriage is unconnected to children?

Hmm. That word: “regulating.”

“Regulating,” for me at least, has connotations of control. Regulation says you must do this or must not do that. But many of the “regulations” around marriage have to do with rights.

These rights exist so people can build a life together that neither could build alone. They exist so that if one partner dies, the other is not devastated by losing their home or struggling for weeks to retrieve the body from the morgue. They exist so you can keep your partner in the country instead of having her deported to the place where a man killed her sister and mother and tried to kill her.

George almost understands that. He believes the government should recognize and regulate marriage for couples who can procreate (and, through tortured reasoning, for couples who can’t procreate but still have a penis and vagina).

However, he claims it’s “much harder to defend” the need for legal, civil marriage when the partners are merely people who “commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life.” That’s mind-boggling, a statement that could only be written by someone who (1) does not understand what it means to commit to another person or (2) has some personal need to endorse his own view at the expense of rational argument.

The story about Mark and Rob is heartbreaking. It really does expose the utter hypocrisy of people like Robert George and Chris Plante. Gay couples just need to fill out a bunch of legal forms, including (of course) funeral-planning agent forms, and your relationship is totally equal to any heterosexual marriage. The fact that someone representing NOM had the audacity to even bring up an obscure legal document as proof that gay couples have the same legal rights as everyone else, speaks volumes. As far as I’m concerned, Chris Plante is an inhuman monster.

Ok, done reading and I must say, Bravo sir. I did not know about the Rhode Island couple. I really liked how you summed up what marriage really is in terms of how the state “regulates” it by tying in the experience of those couples you described above: “These rights exist so people can build a life together that neither could build alone. They exist so that if one partner dies, the other is not devastated by losing their home or struggling for weeks to retrieve the body from the morgue. They exist so you can keep your partner in the country instead of having her deported to the place where a man killed her sister and mother and tried to kill her.”

My grandmother passed away over the weekend. My grandfather who has loved and cherished her for 65 years is now dealing with the unbearable loss. I was there when it happened, and was there the next day. I have seen him clutch his chest while the tears squirted out. I heard him say “it just hurts so much. My life will never be the same.”
Now, consider that there are elderly same-sex couples who have lived together for decades then weren’t even allowed to live in the same home together like my grandparents were; weren’t allowed to hold their dying loved one’s hand like my grandfather was; weren’t kept abreast of the arrangements like my grandfather has been; weren’t even given the sympathies a spouse should receive by those in the community. One such couple comes to mind. I can’t remember their names, but they lived in California. They were put in separate homes and the county took possession of their stuff. The one who died first died alone and his partner was powerless to get to him. It’s sick, absolutely sick. With a marriage license, hospitals, county officials, relatives, attorneys, funeral planners etc have to by state law recognize the spouse.
This piece by George is a long, drawn out piece of chicken scratch that someone should blow their nose on, not base a legal opinion on. We want state-recognized marriage. The simple fact is the state does not tell anyone what kind of relationship to have in their marriage or that they have to raise kids, and whatever view he has of what a marriage ought to be is absolutely irrelevant. This is a Princeton professor right? Unbelievable.

The central rationale for state regulation of marriage, which George seems to miss completely, but which you note in your enumeration of relationships that are regulated, is that marriage is, and historically has been, a contract, and the state has an interest in enforcing contracts. That’s a legal principle so well established that it hardly bears repeating.

While the focus of marriage has changed repeatedly throughout history, it has always had as a central element the disposition of property. Think about what’s at issue in divorce: child custody and material property. (And once upon a time, in the Judaeo-Christian tradition at least, children were part of the property.)

And there, of course, is where George once again shoots himself in the foot: “But why does the state have any interest in regulating marriage if marriage is unconnected to children?”

That may be the guiding principle in a totalitarian country. In a free land, though, we have to remember this: The individual does not exist to serve the State.

And the libertarian in me dances.

Sometimes we forget – due to confusing and confused political pairings – that at their heart social conservatives are collectivists who fear individualism.

Totalitarian minded people (as social “conservatives” so often are) always ask “why should you be allowed to…” when the real question – that which freedom lovers ponder – is “what gives you the right to stop me?”

And what about those rights that come with marriage, but can’t be “contracted” through the mile-high stack of pprwrk? In particular, your spouse can’t be forced to testify against you in court…your conversations are privileged…much like those with your physician or lawyer. There’s ABSOLUTELY NO WAY you can write this in a contract. The ONLY way is to either: both partners are of professions that have legal confidentiality requirements, and to treat each other like clients/patients/etc., or…wait for it…BE MARRIED! DPs, CUs don’t cut the mustard either. They may provide some protection at the state level, but not at the federal level. This is one of the reasons MARRIAGE is so important.

He’s not arguing against ssm, he’s just spouting the prejudice that marriage is between a genetically-determined man and a woman, who may OR MAY NOT have sex (PinV only).

It has nothing to do with love, commitment, mutual-responsibility, it’s just potential PinV sex.

Nothing can be said to change these people’s minds, we are the enemy of all they hold dear and sacred. They wouldn’t pee on us if we were on fire, we threaten their idea of civilisation.

We can only appeal past them to people who can sympathise with the cases that Erin quoted, by seeing how how our situations mirror those they can understand (thank you Erin for giving reality to too often academic discussions, and condolences on your family’s loss).

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